Private antitrust litigation in Turkey: overview

A Q&A guide to private antitrust litigation in Turkey.

The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.

This Q&A is part of the Private Antitrust Litigation Global Guide.

The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.

Contents

Legal basis for bringing private antitrust litigation actions

1. Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?

Stand-alone actions

Claimants can commence a stand-alone action for both bi-and multi-lateral antitrust infringements (for cartels) or unilateral antitrust infringements (for abuses of market dominance) under Turkish civil law.

However, in 1999 the Supreme Court decided that a civil court must wait for the Turkish Competition Board (TCB) (that is, the decision-making organ of the Turkish Competition Authority) to determine the existence of an infringement (the decision of the TCB on a matter, is defined to be a prejudicial question by the Supreme Court) before permitting the commencement of a stand-alone action. Later in 2002, the Supreme Court upheld its previous decision and reversed a court ruling on the ground that the TCB decided that no infringement of the Act on the Protection of Competition (Act No: 4054) (Competition Law) had occurred. Accordingly, in practice, Turkish civil courts must stay proceedings until the decision of the TCB is finalised in relation to the alleged infringement. However, finalisation can take several years (see also Question 22). 

Legislative. The legal basis for bringing a private antitrust action can be found in both:

  • Articles 57, 58 and 59 of the Competition Law. These provisions establish the right to bring an action and the obligation to compensate the injured in relation to infringements of the Competition Law's provisions. Under Article 57 of the Competition Law, anyone who prevents, restricts, distorts the competition, or abuses his dominant position in a particular market by an agreement or an act that is contrary to the law is obliged to compensate any damages of the injured parties. Therefore, damage claims based on Competition Law infringements can be brought in the context of private antitrust litigation.

  • Articles 49 to 76 of the Turkish Code of Obligations. These provisions set out the general principles of tort liability in Turkey.

Non-legislative. Not applicable.

Adversarial or inquisitorial. Turkish civil law actions are principally adversarial (with some exceptions that are not applicable to actions for damages that are related to Competition Law infringements).

Follow-on actions

Claimants can commence follow-on actions for bi-and multi-lateral antitrust infringements (for cartels) or unilateral antitrust infringements (for abuse of market dominance) under Turkish civil law.

Legislative. The relevant Articles of the Competition Law (see above, Stand-alone actions: Legislative) do not provide any limitation on the bringing of a stand-alone or a follow-on action. Under Article 58 of the Competition Law, anyone who has suffered harm because of an infringement of the Competition Law has the right to seek compensation.

Follow-on actions are subject to the same procedures as the stand-alone actions (see above, Stand-alone actions).

Non-legislative. Not applicable.

Adversarial or inquisitorial. Turkish civil law actions are principally adversarial (with some exceptions that are not applicable to actions for damages that are related to Competition Law infringements).

 

Parties to an action

2. What must be demonstrated to commence an action?

Stand-alone actions

For stand-alone actions, a claim for damages is based on an infringement of the Competition Law, which is a specific type of tortious act. Therefore, the conditions for establishing liability in a tort claim under the Code of Obligations are applicable to private antitrust actions. These conditions require the establishment of the following elements:

  • Existence of a tortious act.

  • Damages.

  • Causal connection between the act and the damages.

  • Fault.

Each of the elements above must be demonstrated in all types of actions brought in the context of private antitrust litigation by the claimant. Under Turkish law, each party must prove its own claim, and therefore in the event of a private antitrust litigation matter being filed, the claimant is expected to satisfy all four conditions. Since competition infringements are considered to be tortious acts, the fringing act can be demonstrated by all types of documentary evidence, such as all types of official/unofficial correspondence and witness statements (see Question 34).

According to the Competition Law, anyone who suffers damage due to the infringement of the Competition Law has standing to bring an action. However, private antitrust law in Turkey is still in its infancy. Therefore, the debate as to the person who has the standing is still on a theoretical level, for example, generally, it is accepted that direct purchasers, competitors or suppliers (in the case of a purchase cartel) have the standing to commence an action. However, the eligibility of indirect purchasers, potential competitors, and other related undertakings further away in the production and distribution chain, is still subject to debate. The Competition Law states that anyone who suffers damages due to an infringement of the Competition Law can bring an action to seek compensation. The Competition Law does not provide any restrictions on the eligibility of the victims for bringing an action. However, legal practitioners generally accept (based on foreign case law) that indirect purchasers are not entitled to bring actions for compensation.

According to legal doctrine, it is accepted that parties bringing an action against other infringing parties to the agreement cannot file an action. The Competition Law states that anyone who suffers damages due to an infringement of the Competition Law can bring an action so as to seek compensation. The Competition Law does not provide any restrictions on the eligibility of the claimants for bringing an action. However, legal practitioners generally accept (based on foreign case law) that indirect purchasers are not entitled to bring actions for compensation.

Follow-on actions

The rules for commencing an action are the same as for stand-alone actions (see above, Stand-alone actions).

 
3. Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?

Stand-alone actions

Turkish civil law does not provide any specific procedure for collective actions.

The Turkish Code of Civil Procedure (no.6100) provides that associations or similar legal entities can, within the limits of their statutes and in order to protect the interests of their member or the people they represent, initiate a collective action either (Article 113):

  • For the determination of the rights of the interested parties

  • To seek a cease and desist order to cure a breach of law or prevent a breach of future rights.

However, this right has been incorporated into Turkish law very recently, and still has no application.

Follow-on actions

See above, Stand-alone actions.

 
4. On what basis will a court or tribunal assume jurisdiction with respect to a claim?

Stand-alone actions

For corporate entities domiciled within the jurisdiction, the applicable law will be the law of the country wherein the damage occurred (Private International Law). Therefore, for stand-alone actions, Turkish law will be applied.

It is also possible to identify jurisdiction for a parent company domiciled outside of the jurisdiction. Under the Code of Civil Procedure, for a tortious act, the court of the domicile of the damaged party is competent to hear the claim. Accordingly, this court would then order international service of the statement of claim to the address of the parent company in the foreign jurisdiction.

For a judgment of a Turkish court to be executed in a foreign country, it must be recognised and enforced according to the relevant country's laws. Otherwise, the judgment will not be executed in the subject country.

Follow-on actions

The rules relating to jurisdiction are the same as for stand-alone actions (see above, Stand-alone actions).

 
5. Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside of, the jurisdiction?

Stand-alone actions

Undertakings (business entities, corporations and so on) are subject to the provisions of the Competition Law. However, managers of the undertakings who acted in the name of and on the account of an undertaking cannot be sued for damages arising from infringements of the Competition Law.

Follow-on actions

See above, Stand-alone actions.

 

Limitation periods and forum

6. What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?

Stand-alone actions

The Competition Law does not provide any specific periods of limitation for private antitrust litigation actions. Therefore, the limitation period will be the same as for damages actions under the Code of Obligations. Based on this law, the limitation period is two years from the point in time when the victim became aware of the existence of the tortious act, and ten years in any event.

However, the Turkish Court of Appeal recently decided that an infringement of competition rules constitutes a criminal misdemeanour, based on the fact that an infringement is subject to a fine from the Turkish Competition Board. Based on this rationale, the limitation period for the infringements of the Competition Law should be eight years, instead of two years, as set out in the Misdemeanour Act for criminal misdemeanours. Decisions of the Court of Appeal are strictly binding for the courts in Turkey and provide an indication regarding the development of the practice. This practice has also already found support among legal scholars.

The question of when the victim of a cartel should be considered to have become aware of the tortious act (the establishment and existence of the cartel) remains open. According to the Code of Obligations, the two-year limitation period commences when the victim becomes aware of the tortious act. In Competition Law matters, the two-year limitation period starts to run with the publication of the grounded decision of the Turkish Competition Authority on its website. The ten-year limitation period starts to run with the occurrence of the Competition Law infringement.

Follow-on actions

The beginning of the limitation period in respect of follow-on actions is clear (at least in theory) since the date of the publication of the Turkish Competition Authority's grounded decision would set the date of commencement.

However, in a lawsuit the claimant is still expected to prove the exact time that it become aware of the tortious act.

According to the Code of Obligations, if the Turkish Criminal Code provides a longer limitation period, a longer limitation period would be applied to the lawsuit. This applies to stand-alone actions as well as follow-on actions.

 
7. Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?

Stand-alone actions

There is no specific court where a stand-alone action must be brought separately.

Depending on the claimant that has suffered the damage, the case would be heard before different courts, for example:

  • If the claimant is an undertaking, the action should be commenced in the commercial court of first instance.

  • If the claimant is a real person consumer, he or she should commence the action before the civil court of first instance.

Follow-on actions

These rules are the same as for stand-alone actions (see above, Stand-alone actions).

 
8. Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?

Not applicable.

 

Standard of proof and liability

9. What is the standard of proof?

Standard of proof

The Turkish legal system does not have a criminal/civil standard of proof classification. However, the required level of certainty and the degree of evidence necessary to establish proof in private antitrust cases is "similar" to the civil standard.

Burden of proof

The claimant bears the burden of proof, as a general rule. However, under the Competition Law, the following will constitute a presumption of restriction of the competition, which will shift the burden of proof to the defendant:

  • Similarity of the price changes.

  • Balance of demand and supply.

  • Geographic areas of activity of the undertakings compared to those in the markets where the competition has been restricted.

Apart from the above example, there is no presumption of damage. The claimant must therefore prove the tortious act, the damage, the causal link between the act, as well as the damage and the fault. Assuming the decision of the Turkish Competition Board establishes the tortious act and the fault of the defendant, the claimant will be expected to prove the damage and the causal link.

 
10. Is liability on a joint and several basis?

Undertakings that commit violations the Competition Law violation are jointly liable.

A defendant who makes a payment of damages that is greater than its own proportion of liability can seek to recover the amount in excess of its own portion from the other parties who are guilty of the Competition Law infringement.

On the other hand, recovering any resultant liability from individuals who are, in practice, controlling the company is theoretically impossible. However, in most of the cases, company managers' liability is rather difficult to prove.

 

Costs and timing

11. What are the recent trends in relation to the costs of bringing an action before the relevant courts/tribunals?

Stand-alone actions

Two types of legal costs arise in the initiation of a private antitrust action. These are the:

  • Legal fee. This is a fixed fee of TRL21.15.

  • Judgment fee. This fee is determined as 5.94% of the claimed amount. However, the claimant(s) are obliged to deposit only one-fourth of this amount when initiating the lawsuit.

In addition, an advance payment for court expenses is also deposited by the claimant. This amount can differ depending on the:

  • Number of parties.

  • Requested examination methods (such as discovery).

  • Time of lawsuit.

Follow-on actions

The rules are the same as for stand-alone actions (see above, Stand-alone actions).

 
12. What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?

Stand-alone actions

The unsuccessful party is required to bear the costs of the counterparty for the amount set by the court. The losing party is obliged to pay the proportional judgment fee, as well as the attorney fees of the winning party. However, the attorney fees in question do not concern private attorney agreements.

The calculation of the attorney fees is made in accordance with the guidelines of the Turkish Bar Association.

Follow-on actions

The rules are the same as for stand-alone actions (see above, Stand-alone actions).

 
13. Can parties insure against costs risk associated with an action?

Stand-alone actions

A foreign legal entity or person initiates an action before the Turkish courts, joins an action already initiated, or initiates an execution procedure, it must deposit a guarantee determined by the court. The amount of the guarantee to be deposited is at the court's discretion. Exemptions from this requirement may be provided by bilateral or multinational agreements.

Follow-on actions

The rules are the same as for stand-alone actions (see above, Stand-alone actions).

 
14. Can a third party fund the costs of bringing an action?

Stand-alone actions

There is no specific regulation on third-party funding. As long as the necessary fees and expenses are paid, there is no legal prohibition on such funding, and the courts will not investigate whether the expenses have been funded by a third party.

Follow-on actions

The rules are the same as for stand-alone actions (see above, Stand-alone actions).

 
15. Can claimants assign their claim to a third party funder?

There are no rules restricting litigation funding in Turkey. Any of the parties can use litigation funding, as long as it complies with the laws on lending funds. There are a limited number of decisions of the Turkish Court of Appeal that support the assignment of monetary claims. 

 
16. Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?

Attorney fees cannot be for less than the Minimum Fee Tariff, which is determined by the Turkish Bar Association (Code of Attorneys). Agreements that stipulate that the attorney fee will not be paid if the attorney is unsuccessful are invalid. Apart from this limitation, there is no restriction on conditional fees which would be determined as success fees. The mechanism for the calculation of the success fee is not restricted and it can be calculated over a fixed percentage of the compensation awarded by the court. 

 
17. Is it possible for a defendant to a claim to bring an application for security for costs?

Stand-alone actions

If a foreign legal entity or person initiates an action before the Turkish courts, joins an action already initiated, or initiates an execution procedure, it must deposit a guarantee determined by the court. The amount of the guarantee to be deposited is at the court's discretion. Exemptions from this requirement may be provided by bilateral or multinational agreements.

Apart from this guarantee, the defendant cannot apply for an additional security of cost in respect of a stand-alone and/or follow-on action.

Follow-on actions

The rules are the same as for stand-alone actions (see above, Stand-alone actions).

 
18. What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?

In Turkey, the average lawsuit is about two to three years, excluding the appeal period.

Depending on the workload of the court, and the complexity of the lawsuit, the period for a lawsuit to be finalised takes longer. In most complex lawsuits, the court requests more than one expert witness report to clarify matters. If one of the parties does not have a residence in Turkey, the service of the statement of claim can also become a significantly time-consuming process, and will prolong the lawsuit period.

 

Pre-trial applications and hearings

19. Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?

According to the Turkish Attorney Act, only registered attorneys can review the file in order to obtain documents from a case file, and a power of attorney is required.

 
20. Can a claimant seek interim measures?

Stand-alone actions

The Competition Law does not provide specific interim measures for stand-alone actions. Therefore, the general rules of the Civil Procedure Law will apply. The Civil Procedure Law provides for two types of interim measures:

  • Preliminary injunction.

  • Determination of evidence.

On the other hand, if the occurrence of serious and irreparable damages is likely, the Turkish Competition Board (TCB) may take interim measures that have the purpose of maintaining the conditions that existed before the alleged infringement of the Competition Law.

If certain conditions are in place, the claimant can apply for an interim injunction. If there is a significant apprehension of risk (set out under three specific scenarios (see below)), the Civil Procedure Law allows parties to request an interim injunction. If the court grants an injunction, the party must initiate the legal action within two weeks. The three scenarios are as follows:

  • Where there is significant difficulty in the acquisition of a right.

  • Where the acquisition of a right is almost impossible.

  • Where there is a risk of significant damage or inconvenience in the event of delay.

According to the Competition Law, injunctive relief, as regulated under the Civil Procedure Law, is applicable in antitrust litigation. There are other forms of interim relief that the TCB can apply during its investigation, but there is no one instrument or interim relief that is dedicated to Competition Law, which could be named as the current trend.

Follow-on actions

The rules are the same as for stand-alone actions (see above, Stand-alone actions).

 
21. Can a defendant seek to dispose of all or part of the action prior to a full trial?

Although there are no exact corresponding concepts in Turkish law for the striking out of an action or a summary judgment, similar instruments are available, in practice.

If one of the parties claims that part of the counterparty's petition is irrelevant to the action, or the chosen words are ambiguous or unclear, it can request the court to return the petition to the relevant party. If the court accepts the request, it will grant a period for to the party to revise its statements.

Despite the fact that there is no instrument such as a summary judgment in Turkish law, a similar instrument is the "request for determination of evidence". With this request, the court can, without a proper trial, collect evidence and determine a matter (for example, the determination of the invalidity of a cheque). Furthermore, the decision can have a significant impact on other actions, as the decision itself is considered to be a binding determination made by a court.

As mentioned above, strike-out and summary judgment are not available. However, the Code of Civil Procedure provides "negative declaratory action" as a similar tool to request the court to determine whether a certain legal relation exists or whether an evidentiary material is genuine. The necessary elements to enable a negative declaratory action are that:

  • There should be a legal interest in bringing the action.

  • The subject of the action should include a legal relationship.

An application process must be followed regarding a negative declaratory document.

 
22. Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?

Both parties to a dispute can request the court to render a stay of claim decision (bekletici mesele) if there is a prejudicial issue to be decided by either another court or administrative authority (Civil Procedure Law).

The Court of Appeal does not have a precedent opinion in relation to when proceedings should be stayed. However, when assessing the matter, the court will examine whether the Turkish Competition Board (TCB) has made any decision that could affect the outcome of the dispute. If the investigation of the TCB is still ongoing, the court will stay the proceeding until the finalisation of the TCB's decision. Nevertheless, the court may decide to not stay proceedings and to produce its own evaluation, despite the decision of the TCB being subject to appeal.

Apart from the circumstances mentioned above, there is no other basis on which a stay of proceedings can be sought.

See also Question 1, Stand-alone actions.

 
23. Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?

The Civil Procedure Law does not provide a separate procedure in which parties can request a preliminary issue to be heard by the court.

 

Evidence and legal privilege

24. Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?

Competition authority decisions

See below, Judgments.

Judgments

Although there is no provision under the Code of Civil Procedure on the binding nature of Turkish Competition Board (TCB) decisions in private antitrust claims, the High Court of Appeals cancelled lower court decisions awarding compensation to the claimant in the absence of a finalised TCB decision, on the basis that a TCB decision must be sought before awarding compensation. Accordingly, TCB decisions are assumed to be binding on a de facto basis.

However, in an earlier decision of the TCB, the TCB concluded that a finding of a breach of the law by civil courts will not prevent the TCB from elaborating on the matter on its own.

 
25. What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?

The use of findings and decisions of foreign enforcers and regulators as evidential material is not restricted under the Competition Law. However, in light of the precedents from the High Court of Appeals (see Question 24) the courts would be required to seek the presence of a finalised TCB even in the existence of such material.

 
26. If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?

The process for disclosure of documents is as follows:

  • Pre-trial. At the commencement of a trial, each and every document must be submitted. The submission of second petitions for both parties will then initiate the prohibition on the amendment and alteration of claims and defences. This prohibition prevents parties from submitting any new items of evidence, unless the opposing party provides its consent.

  • During trial. Documents that do not exist/are not yet found at the pre-investigation process must be submitted during the trial.

To render a decision on the merits of an action, the court can request the Turkish Competition Board to provide its decision and its annexes. Similarly, if the court decides to examine a certain document held by a third person or an institution, it can order the document to be summoned (Article 221, Civil Procedure Law). However, if this person or institution cannot provide the court with the requested document, they must explain the reasons for non-submission with its relevant items of evidence. If the court finds the explanations to be inadequate, it can request to hear them through a witness. Nevertheless, at the request of a party, the court can render the requested document to be kept confidential (see Question 27 and 33).

However, specific regulations for disclosure do not exist under Turkish law. Therefore, the processes outlined above must be directed by the court.

It is not possible for a claimant to obtain copies of confidential decisions from the competition authorities, leniency materials prepared and submitted by the defendant to competition authorities, or any other documents or materials not in the possession or control of the defendant. However, a party can request a document to be summoned by the court, and if the court decides that document is necessary for the resolution of the dispute, it would summon it. Summoning could both be done pre-trial or during the trial.

 
27. Can a party oppose the provision of any documents not in their possession or control?

According to the Civil Procedure Law and its Regulation, the court can render a confidentiality decision for certain documents. These documents are kept in the court's safety deposit area under the responsibility of the chief clerk, and can only be reviewed with the judge's permission. In such cases, because a confidentiality decision is an ordinary interim decision of the court, a party can request the decision to be removed.

 
28. Can parties rely on legal privilege to withhold documents from inspection?

As a rule, the items of evidence to resolve the antitrust action are provided by the parties to the case. Therefore, parties can withhold specific items of evidence to be submitted to the court. However, there are specific rules regarding the type of evidence, such as providing commercial books of the company. Under Article 222 of the Civil Procedure Law, if a party fails to provide its commercial books for examination, the providing party's claim would be regarded as proven.

 

Alternative dispute resolution

29. Can the parties seek to resolve the action through alternative dispute resolution?

The only option for an alternative dispute resolution (ADR) process to be initiated by any of the parties is for the parties to have an executed mutual agreement. Turkish law does not have a system for mediation.

Parties are not required to engage in ADR prior to trial.

If there is a mutual agreement, ADR cannot be refused. If a party brings an antitrust action despite the existence of an agreement, an arbitration objection can be brought. However, if such an agreement does not exist, the parties have the option to not accept the arbitration.

ADR is a time-efficient process, and the decisions are mostly more business-oriented (a litigation process arising from tortious acts cannot be arbitrated).

 

Settlement or discontinuance of an action

30. What are the tactical advantages and disadvantages associated with making an offer of settlement?

In most cases, the strategy will differ depending on the expert witness report's assessment, for example:

  • If the report assesses that the losses are higher than the initial claim of the claimant, the claimant will generally prefer to settle the action for a figure close to that amount.

  • If the defendant believes that a negative report may be the case, he will generally prefer settlement prior to the submission of an expert witness report.

Other than the business-related consequences, the timing of the settlement does not have specific consequences (however, see Question 31).

 
31. Is permission required from the relevant court or tribunal to settle any action prior to or during trial?

If the parties settle the dispute before the first hearing of the lawsuit, only one-third of the judgment fee will be ordered. However, if settlement is made at any period after the first hearing session, two-thirds of the judgment fee will be ordered by the court.

If the parties execute a settlement agreement, the court will rule that there is no need to render a decision on the merits of the case. If a dispute is resolved by the parties, the court will not render a decision regarding the merits.

No permission, but a declaration, is required during the trial. The duly invited parties would stand in the trial and declare that they are discontinuing the matter. If one of the duly invited parties fails to attend the hearing, depending on the opposing party's request, the action is either continued or cancelled. However, a cancellation can be removed at the request of the party who failed to attend within three months.

 

Proceedings at trial

32. Are actions heard by a jury?

The jury system does not currently exist under Turkish law.

 
33. How is confidential information protected during the course of proceedings?

There is no provision for the treatment of confidential information under the Code of Civil Procedure.

However, according to the Civil Procedure Law and its Regulation, the court can render a confidentiality decision for documents. These documents are kept in the court's safety deposit area under the responsibility of the chief clerk, and can only be reviewed with the judge's permission.

 
34. What evidence is admissible?

Despite not being exactly the same, the Civil Procedure Law differentiates evidence into two categories:

  • Certain evidence. These are defined as deeds, oaths and finalised decisions of the courts. The Civil Procedure Law and other laws determine the consequences of these items of evidence, and therefore the Turkish court cannot interpret them otherwise. If certain evidence proves a fact, the Civil Procedure Law obliges judges to accept the truth of this fact.

  • Arbitrary evidence. This includes witness testimony, expert witness reports and discovery. However, for any matters that are allowed to be proven by arbitrary evidence, these items of evidence could be used. In this respect, arbitrary evidence is permissible in private antitrust actions.

The parties can request the court to review evidence from criminal proceedings.

Witness evidence is admissible. Both parties can request their witness be heard by the court, and the counsel for the parties has the right to direct questions to them.

If there is an issue that requires specialised or technical information, the court can obtain the opinion of an expert witness (Civil Procedure Law). In litigation practice, expert witness examination has great significance. In most cases, the courts require assistance from experts in specific matters where the court lacks expertise or information. The parties also have the right to request that the expert witness appear before the court for additional explanations and questioning.

 

Available defences

35. Is a "passing-on" defence available?

Since there has been no civil law action seeking compensation for damage caused by an infringement of the Competition Law, the passing-on defence has still not been evaluated by a Turkish court.

 
36. Are any other defences available?

The Court of Appeal case law suggests that if a parent company has control over the subsidiary and it instructs the subsidiary in bad faith to engage in any breach of antitrust law (or any other act in breach of any law), the parent company can be held responsible (removal of the corporate veil). To hold a parent company liable, actual control and instruction for the activity should be proven by the claimant.

 

Available remedies

37. Are damages available, and if so, on what basis are damages awarded?

The claimants (other competitors) have the right to request all damages from the defendant. The claimant has the right to seek both compensation and restitution damages, including all profits that the alleged parties hoped to gain. If the damage arose from the agreement or decision of the defendants, or gross negligence of the defendants, the court can (subject to the claimant(s)'s request) render a threefold determination of damages (see below).

Damages and public financial penalties are two separate instruments. In the determination of the damages, the public financial penalties do not have an effect, because in each action, the court determines the total amount of accrued losses suffered by the claimant in order to award damages.

Furthermore, the Competition Law allows the claimant to seek treble damages. This can be done on the basis that the damage arises due to an agreement restricting the competition unduly or due to gross negligence of the defendant.

 
38. How are damages quantified?

Damages are quantified via expert witness examination.

If there is an issue that requires specialised or technical information, the court can obtain the opinion of an expert witness (Civil Procedure Law). The court or the parties can demand an expert witness examination. In this procedure, the court assigns an expert witness who makes an evaluation about the matter and prepares a report. However, this report has no binding effect on the court's final decision.

However, since so far there has been no application of the above procedure to the Competition Law, it is not possible to outline any specific economic analysis that is preferred by the courts in quantifying damages for particular antitrust breaches. For the very same reason, it is not possible to indicate the nature of the evidence that can be adduced to establish quantum.

 
39. Are any other remedies available?

The parties are allowed to provide the court with private legal opinions in which independent academicians provide their assessments as to the action. Although these opinions have no binding effect on the judge, in most of the cases, they provide assistance for the evaluation of the action.

 

Appeals

40. Is it possible to appeal the judgment of the relevant court or tribunal?

The parties can appeal a decision of the court of first instance within two weeks of due service of the court's reasoned verdict. The reasons for appeal are as follows:

  • The court was in error in its examination of the agreement between the parties.

  • The court lacks jurisdiction.

  • The court renders a decision that is against one party.

  • The court was in error in its evaluation of the procedural rules.

  • The court was in error in its evaluation of the material matter of the dispute.

  • The court rejects the evidence of one of the parties, contrary to the law.

 

Reforms

41. Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?

A Draft Act to reform the Competition Law was presented to the Grand National Assembly on 31 July 2008. The changes proposed in the Draft Law generally aim to bring procedural enhancement and clarification regarding some provisions of the Competition Law.

According to the changes comprised in the Draft Law, treble damages will only be granted if the Competition Law infringement is made, either intentionally, or by the gross negligence of the infringers. The current wording of the Competition Law does not have such criteria for treble damages.

The draft act also provides the courts with the opportunity to refer to the Turkish Competition Authority's expertise as a prejudicial matter. Nevertheless, the assessment is left to the judges. On such request, the Presidency of the Turkish Competition Authority (TCA) must establish a team of competition law experts to evaluate the case. Furthermore, the judges will be granted the option to declare an ongoing pre-investigation or investigation of the TCA as a prejudicial matter in an action for damages.

 

Online resources

Turkish legislation

W www.mevzuat.gov.tr

Description. General website for Turkish legislation. It is an official website maintained by the Prime Ministry and is updated regularly.

Turkish Competition Authority

W www.rekabet.gov.tr

Description. Official website of the Turkish Competition Authority, which is updated regularly. The English language version of this site can be found at www.rekabet.gov.tr/en-US/Mainpage.


Contributor profile

Süleyman Cengiz, Senior Competition Law Adviser

Herguner Bilgen Özeke Attorney Partnership

T +90 212 310 1843
F +90 212 310 1899
E scengiz@herguner.av.tr
W www.herguner.av.tr

Professional qualifications. Turkey, lawyer

Areas of practice. Competition law.

Recent transactions

  • Acted for ArcelorMittal in relation to obtaining approval of the Turkish Competition Board regarding a specialisation agreement to be applied in Turkey.

  • Acted for Essilor in relation to a major acquisition in Turkey.

  • Advised an international investment fund regarding competition law aspects of a recent "big ticket" transaction in Turkey in the telecommunications sector.

  • Advised an international consumer goods retailer regarding the competition law aspects of their exit strategy out of Turkey.

Languages. Turkish, English, German


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1248412990736", "objName" : "Private antitrust litigation in Turkey", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/1-633-1545?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "2-3b01f5d1:15b0e9fdc23:30df", "analyticsSessionCookie" : "2-3b01f5d1:15b0e9fdc23:30e0", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }